Madan Lal Khanna & Anr. vs The Lakshmi Vilas Bank Ltd. & Anr.
2011 Latest Caselaw 5308 Del

..
*          HIGH COURT OF DELHI: NEW DELHI

+          I.A. No. 11454/2006 in C.S.(OS) No.795/2004

                               Judgment Reserved on: 09.08.2011
%                               Judgment Pronounced on: 02.11.2011

MADAN LAL KHANNA & ANR.                     ..... Plaintiffs
              Through Mr. J.P. Sengh, Sr. Adv. with Mr Rahul
                      Srivastava and Mr Karan Khanna, Advs.

                      Versus


THE LAKSHMI VILAS BANK LTD. & ANR           ..... Defendants
               Through Mr S. Aravindh, Adv. for D-1.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported              Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of the pending application, being

I.A. No. 11454/2006, filed by the plaintiff under Order 6 Rule 17 CPC

read with Section 151 CPC for amendment of the plaint. The amendments

sought by the plaintiffs are mentioned in para 12 of the application.

2. Originally, the plaintiffs filed the suit for declaration,

permanent and mandatory injunction against the two defendants, namely,

Lakshmi Vilas Bank Ltd. and Canara Bank. The following reliefs were

sought by the plaintiffs as per the plaint filed in the year 2004:

"(A) pass a decree of declaration declaring that pursuant to the Deeds of Sub-lease dated 20.11.96 and 27.4.2011 under which the Defendant No.1 has entered upon the suit property bearing No.74/8 Janpath, New Delhi-110001 and is in occupation as Plaintiffs' tenant, the Defendant No.1 is bound to retain the leased premises till the entire duration of the lease ending on 20.11.2011 and pay rent as agreed for the full duration of the lease to the Defendant No.2 to be credited to the escrow account of the Plaintiffs with the Defendant No.2 bank;

(B) pass a decree of declaration declaring that the notices dated 27.4.2004 and 13.5.2004 sent by Defendant No.1 to the Plaintiffs are illegal, invalid and void ab-initio and that Defendant No.1 cannot wriggle out of its liability to continue with the lease of the suit property bearing No.74/8 Janpath, New Delhi-110001 in terms of the Deeds of Sub-Lease dated 20.11.1996 and dated 27.4.2004;

(C) pass a decree of permanent and mandatory injunction restraining the Defendant No.1 from determining the lease prior to 20.11.2011 and vacating the suit property or till such time on discharging the entire liability owed by the Plaintiffs to Defendant No.2 against the rents receivable from Defendant No.1, whichever is earlier;"

3. Along with the suit, the plaintiff filed an application under

Order 39 Rules 1 and 2 read with Section 151 CPC, being I.A.

No.4640/2004, seeking interim order, inter alia, to restrain the defendant

No.1 from determining the lease and vacating the suit property prior to

20.11.2011 or till such time on discharging the entire liability owed by the

Plaintiffs to the defendant No.2 against the rents receivable from the

defendant No.1. It was also sought that the defendant No.1 be directed

not to withhold the payments of arrears of lease rental charges to

defendant No.2. The said application was disposed of vide order dated

28.09.2004. The relevant portion in order to decide the present

application reads as under:

"8. The relevant clauses in the sub lease dated 20th November 1996 entered into between the plaintiff and defendant No.1 are as under:

" 1) The first party hereby granted sub lease of the schedule property and the second party hereby accepts the sub lease of the property described in the Schedule herein for a period of nine years from the date of the commencement of the lease.

... .... .....

4) That in consideration of the First Party agreeing to grant sub lease of the Schedule Property in terms contained herein the Second Party has agreed to pay the First Party a sum of Rs. 24,96,000/- representing one years rent as advance which is repayable by the First Party to the Second Party without interest at the time of the Second Party delivering back vacant possession of the Schedule Property. That on the expiry of the first three years of lease the Second Party shall pay a sum equivalent to one year's enhanced portion of rent to the First Party and on the expiry of the sixth year from the date of commencement of lease the Second Party shall pay again one year's enhanced portion of rent of the First Party and the amounts paid as above to the First Party as deposit shall be refunded to the Second Party at the time of delivering back vacant possession of the Schedule premises without interest."

The agreement dated 30th November 1996 contained the renewal clause reading as under:

"The First Party as well as Confirming Party have agreed to execute a fresh sub lease for a further period of 6 years on expiry of lease period of first 9 years in respect of the

Scheduled premises measuring about 1800 Sq. Ft. of super built up area situated on the Ground at the rear portion at the rear opening on the service road in property bearing No. 74/8, Janpath, New Delhi as marked red in the site plan attached to this agreement on the same terms and conditions as mentioned in the said agreement dated 09/9/1996 except that the rent will be enhanced by 25% on the expiry of every three years. Rest of the terms and conditions of the fresh sub-lease to be executed after expiry of the sub-lease aforesaid shall remain the same and binding on the parties."

9. I am of the view that even if the averments of the plaintiff are accepted to be correct to the effect that the intrinsic character of the lease cannot be altered and a lease for a definite term executed on 27-4-2001 pursuant to the agreement dated 30th November, 1996 could only expire by efflux of time, the plaintiff could not pray for an interim order for continuance of the lease. The remedy for the plaintiff in such a situation is to seek damages for violation of its rights and it cannot seek an interim order directing the continuance of a relationship of Lesser and Lessee when the Lessee was unwilling to continue. The fact that there are transactions of loan between the parties and the loan taken by the plaintiff from the defendant No. 1 Bank had been paid back cannot be the basis for an interim order and can at best be a factor relevant for determining the eventual and final rights of the parties and the quantum of damages if any, found payable. In any case there is no tripartite contract between the parties signed by three parties and the plea that the inter se contracts and correspondence between the plaintiff and the defendant No. 1 and the plaintiff and the defendant No. 2, constituted such a tripartite agreement cannot be accepted at this stage. I am unable to accede to the prayer of the plaintiff that facts of the case indicated compulsory estoppel by the representation of the parties by virtue of which estoppel the rights of the plaintiff are enforceable at this interim stage."

4. The said order was challenged by the plaintiff in appeal, being

FAO(OS) No.209/2004, which was disposed of by order dated 03.03.2005

allowing the respondent No.1 to vacate the premises and pay rent for the

period for which the respondent No.1 was in occupation of the premises.

Both the parties also preferred Special Leave Petitions which were

disposed of by order dated 19.02.2007. The operative portion of the order

reads as under:

"We have perused the order dated 3.3.2005 passed by the Division Bench of the High Court. The Division Bench modified the order passed by the learned Single Judge to the extent that instead of furnishing the bank guarantee for the rent, the petitioner should pay the rent amount to the respondent No.2 on or before vacating the premises. We are of the view that the stand taken by the High Court is correct in the facts and circumstances of the case. We further specify that whatever rent is due to the respondent No.2 upto 31.3.2005, shall be paid by the petitioner within a period of two months from today. This will be subject to the final decision in the suit before the High Court."

5. In view of the above, the plaintiffs filed the present application

for amendment of the plaint. The following amendments were sought by

the plaintiffs:

"In the circumstances the Plaintiffs wishes to change the heading of the Suit from that of

"Suit for Declaration and Permanent and Mandatory Injunction" to that of "Suit for Declaration, Permanent and Mandatory Injunction and for Recovery of Lease Rent/Damages".

The plaintiffs also wish to make amendments in the prayer clause and add a fresh prayer (B) and (D) and the rest of the

prayer clauses will also have consequential changes with regard to their nomenclature namely present prayer (B) will become prayer (C), prayer (C) will become prayer (D) and prayer (D) will become prayer (F) and the newly added clause (B) and (E) will read as under:

(B) "Pass a decree in favour of the Plaintiffs and as against Defendant No.1 directing the Defendant No.1 to pay the total amount of rent/damages due upto 20.11.2011 from 1.4.2004 till 20.11.2011 in terms of the Registered Lease Deeds dated 20.11.1996 and 27.4.2001 amounting to Rs.7,50,000,00/- (Rupees Seven Crores and Fifty Lakhs Only)."

(C) "Pendente lite and Future Interest @8% per annum be also awarded to the Plaintiff along with cost of the suit."

That the Plaintiffs also wish to make amendments in court fee para 31 of the suit as the Plaintiff is seeking an amendment in the prayer clause. Thus, the earlier para 31 after amendment will read as under:

"that the value of the suit for the purposes of Jurisdiction is Rs.20,05,000/- (Rupees Twenty Lakhs Five Thousand Only) on which an advalorum court fee of Rs.21000/- is affixed for the purposes of declaration the value fixed at Rs.200/- and court fee is paid according for the purpose of injunction the value is fixed at Rs.200/- on which the Plaintiff have affixed the requisite court fee amounting to Rs.20/-.

After amendment will read as under:

"That the value of the suit for the purposes of Jurisdiction is Rs.7,70,050,00/- (Rupees Seven Crores Seventy Lakhs and Five Thousand Only) on which an advalorum court fee is affixed. (The Plaintiff respectfully submits that the Lease is from 20.11.1996 till 20.11.2011 and as the Defendant No.1 has not paid the rent from 1.4.2004 till 31.3.205 (till the time they were in the premises) as well as thereafter, in view of the legal position, the Defendant No.1 having left the premises and the rent receivable will/is now termed being as rent/damages, the plaintiff submits that as and when this Hon'ble Court directs the Defendant No.1 to pay to the Plaintiff, correspondingly the Plaintiff will pay the court fee on such amount.) for the

purposes of declaration the value fixed at Rs.200/- and court fee is paid accordingly, for the purpose of injunction the value is fixed at Rs.200/- on which the Plaintiff have affixed the requisite court fee amounting to Rs.20/-.

6. The application has been opposed by the defendant No.1. In

the reply, it is stated that the present suit is not maintainable as no cause of

action had arisen. The defendant No.1 has also challenged the lease deed

dated 20.11.1996 by stating that there is no extension or renewal clause in

the same. In fact, the defendant No.1 has blamed the plaintiffs that it is

the plaintiffs who after availment of the loan facilities with Canara Bank

on their own accord, without any prior consultation or intimation to

defendant No.1, chose to restructure the same on the basis of the future

rents receivable. Since the defendant No.1 felt that its commercial and

other exigencies did not allow itself to continue with the suit premises,

therefore, it was categorically informed by the defendant No.1 to the

plaintiffs that the defendant No.1 would like to vacate the premises with

effect from April 2005. It is stated that the suit of the plaintiffs is meritless

and is liable to be dismissed.

7. I have considered the rival submissions of the parties as well as

the relevant pleadings. It is a matter of fact that at the time of deciding an

interim application, it is not necessary for the Court to consider the merit

of the case. The contention of the defendant No.1, i.e., the suit filed by

the plaintiffs is not maintainable, cannot be considered at this stage, while

deciding the present application. All the defences raised by the defendant

No.1 are still open and the defendant No.1 is entitled to take all its pleas in

the written statement to the amended plaint. Since it is a dispute between

the parties as to whether the defendant No.1 would have continued with

the rented premises till 20.11.2011 or not, the same can be determined

when the matter is taken on merit. As far as the present application is

concerned, the plaintiffs are entitled to amend the plaint in view of the

observations made by the Court in order dated 28.09.2004 passed in I.A.

No. 4640/2004.

8. Under these circumstances, the present application is allowed.

The plaintiffs are granted two weeks time to file the amended plaint, if

already not filed. The written statement to the amended plaint be filed

within two weeks thereafter.

C.S.(OS) No.795/2004

List the matter before the Roster Bench on 01.12.2011, when

the plaintiffs' application under Order 12 Rule 6 CPC, being I.A.

No.7568/2005, will also be listed for direction.

MANMOHAN SINGH, J.

NOVEMBER 02, 2011 jk